Frequently Asked Questions (FAQ's)

WHY SHOULD I HIRE A VA ACCREDITED ATTORNEY?

By law, an individual must be accredited by VA as an agent, attorney, or representative of a VA-recognized veterans service organization to assist in the preparation, presentation, and prosecution of a claim for VA benefits. 38 U.S.C. §§ 5901-5902, 5904; 38 C.F.R. § 14.629. An attorney has spent years attending law school and studying the law. The VA law is vast and complex. Why trust your case to anyone with lesser qualifications and education?

YOU WANT THE MOST EXPERIENCED AND EDUCATED LEGAL COUNSEL YOU CAN GET. Experience and the School of Hard Knocks is usually the best teacher. In Attorney Tom Kiely's case, he is retired military (Former USMC Aviator and Army, Retired), has served in senior business and corporate positions, and has been practicing law since 1990. Attorney Kiely has the experience and business accumen to place you in an optimim position to succeed.

Additionally, Attorney Kiely has on his staff a VA Accredited Agent, Karyn Austin, who will also assist in handling your case. Ms. Austin is extremely knowledgeable in VA Law and medicine.

WHAT TYPE OF CASES WILL ATTORNEY TOM KIELY ASSIST A VETERAN OR CLAIMANT WITH?

Veterans who have current medical conditions that are caused by, or related to, military service are entitled to service-connected compensation from the Department of Veterans Affairs. I assist veterans and their family members appeal VA decisions that have denied their claims for service connected benefits and compensation (or decisions that have granted some benefits but with which the claimant does not agree). I represent veterans and their family members during all levels of the VA appeal process, including all 58 VA Regional Offices, the Board of Veterans’ Appeals (BVA), the U.S. Court of Appeals for Veterans Claims (CAVC or “Veterans Court”), and the U.S. Court of Appeals for the Federal Circuit (CAFC).

I also assist surviving spouses who have been denied death benefits (known as a Dependency and Indemnity Compensation or DIC), veteran-beneficiaries who are in the VA Fiduciary Program, and medical negligence claims in which a qualified medical professional has confirmed (in writing) that the medical care provided by VA doctors fell below the required standard of care.

HOW DOES A VETERAN QUALIFY FOR SERVICE CONNECTED BENEFITS AND COMPENSATION FROM THE VA?

A veteran must satisfy three fundamental criteria to receive service connected benefits:

1) a current disability (documented by medical evidence);

2) evidence to support that the medical condition began during military service (or was aggravated by military service); and

3) a relationship or link (known as a medical nexus) confirmed by a doctor that the veteran’s current medical condition is related to his or her military service.

AT WHAT PART OF THE PROCESS CAN A VETERAN HIRE AN ATTORNEY?

When a Notice of Disagreement (NOD) is about to be filed. An attorney will assit you in filing a proper NOD and handle the appeals process, to include strengthening and presenting your case.

HOW IS AN EFFECTIVE DATE DETERMINED AND WHY IS THAT IMPORTANT?

The general rule is that once your claim is granted by the VA, benefit payments will begin retroactive the first month after the date the claim was filed, so long as the appeal was kept alive. Example: if a claimant filed a claim on April 15, 2000, once granted the VA will begin making payments retroactive to May 1, 2000.

HOW DOES A VETERAN QUALIFY FOR INDIVIDUAL UNEMPLOYABILITY?

A veteran may be eligible for Individual Unemployability (referred to as “IU” or TDIU”) when medical and lay evidence shows that he or she is unable to maintain substantially gainful employment due to one or more service-connected disabilities. VA is required to automatically consider a veteran for IU eligibility if he or she has one service-connected disability rated 60 percent disabling (or higher); or, if there are two or more service-connected disabilities, then at least one disability must be rated 40 percent (or higher) and all disabilities must amount to a combined total rating of 70 percent (or higher).

If the veteran is applying for IU, it may prove useful to also submit a medical (treating) doctor’s written statement confirming that the veteran is unable to maintain substantially gainful employment because of his or her service-connected disabilities.

WHEN A VETERAN'S SERVICE-CONNECTED DISABILITIES WARRANT A 100% RATING, DOES THAT MEAN HE IS PERMANENT & TOTAL ("P&T")?

Not automatically. The designation of “permanent and total” is the holy grail of sorts for veterans because it entitles the veteran to additional benefits such as access to military bases’ stores, state-level benefits and discounts, and usually no future VA medical examinations. However, there is no statutory or regulatory provision for P&T criteria, and therefore, it is inconsistently designated among the 58 VA Regional Offices. For example, I have seen VA examiners note it in a VA exam report which VA raters then incorporate into a Rating Decision. In other cases, a VA examination report is silent regarding P&T status, but a VA rater still includes it in a Rating Decision.

Note also that a veteran cannot apply simply for P&T; rather, it is a designation the VA gives when a veteran’s service-connected disabilities are severe and show no signs of ever improving.

CAN A VETERAN RECEIVE BOTH VA AND SOCIAL SECURITY BENEFITS AT THE SAME TIME?

It depends on the type of benefits being paid by each agency. A veteran is eligible to receive both Social Security Disability Insurance (SSDI) and service connected disability from the VA. However, if a veteran is receiving a Social Security Pension (SSI), then there will be an offset for VA service-connected disability pay. When a veteran qualifies for both VA service connection compensation and SSI, then the VA will ask the veteran to choose.

Note that a veteran cannot receive VA Pension and Social Security Insurance (SSI) simultaneously (because they are both financial needs-based programs). Typically, however, VA pension payments are higher.

IF A VETERAN DIES, DO HIS BENEFITS AUTOMATICALLY GO TO HIS SURVING SPOUSE?

No, a veteran’s monthly VA benefits do not automatically pass to his or her surviving spouse. But, if a veteran passes away while their claim or appeal for VA service connection benefits is still pending, then a surviving spouse may be eligible to be substituted in place of the late-veteran and continue to pursue his VA benefits. (This must be done within 1 year of the veteran's death). In addition, an eligible surviving spouse may receive death benefits (known as Dependency and Indemnity Compensation (DIC)) if they are able to show that the medical condition that caused the veteran’s death is related to military service.

HOW DOES AN ELIGIBLE SURVIVOR OF A DECEASED VETERAN QUALIFY FOR VA BENEFITS?

A veteran’s spouse, child or parent may qualify for Dependency & Indemnity Compensation (DIC), if

1) the cause of the veteran’s death was due to service,

2) a veteran’s death resulted from a non service-related injury or disease and the veteran was receiving, or was entitled to receive, VA Compensation for service-connected disability that was rated as totally disabling for at least 10 years immediately before death,

3) the veteran was receiving the total disability for at least five years following his or her release from active duty immediately preceding death, or,

4) the veteran was a former prisoner of war who died after September 30, 1999, and was receiving benefits for at least one year prior to death.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.